Bench:
Justice P. Sathasivam, Justice B.S. Chauhan
Appellant:
Parimal
Respondent:
Veena @ Bharti
Issue
When can an ex parte decree be set aside under Order IX Rule 13, Civil Procedure Code 1908?
Facts
- The husband (appellant) and wife (respondent) got married on 9.12.1986 but their relationship wasn’t cordial. Soon after, the appellant filed a divorce petition against his wife. She refused to receive the notices sent by Court 04.05.1989 & 07.08.1989. The summons was affixed at her house but she didn’t appear in the court. Public notice in the newspaper was also published.
- Due to her non-appearance, an ex parte decree was passed & the divorce was granted.
- After 4 years, on 17.12.1993, the wife filed an application Order IX, Rule 13 Civil Procedure Code to set aside from the decree on the ground that notices were not served on her and allegations of fraud on the husband with the postman were made.
- The Trial Court stated that she couldn’t provide sufficient grounds & the application was dismissed.
- The appeal by the wife was filed in Delhi High Court and the decision was in her favour.
- Now, an appeal against the High Court’s decision was filed in the Supreme Court by the husband.
Appellant’s contentions
- It was contended that service of notices was completed in accordance with the Civil Procedure Code.
- Under Order IX, Rule 13 the behaviour of the appellant after the decree was considered by the HC which is not a valid ground.
Respondent’s contentions
- The contention raised was that it is the burden of the appellant to prove that the allegations of fraud are false in regards to the fake report of service of notices.
Relevant Paragraphs (Paragraph Numbers 8, 12, 23, and 24 of the Original Judgement)
- An ex-parte decree against a defendant can be set aside if it is satisfied that summons had not been duly served upon him or that he was prevented by sufficient cause from appearing when the suit was called on for hearing. However, such decree cannot be passed on mere irregularity in the service of summons.
- While deciding on sufficient cause, the court must bear in mind the object of doing substantial justice to all the parties concerned and that the technicalities of the law should not prevent the court from doing substantial justice and doing away the illegality perpetuated on the basis of the judgment impugned before it. Sufficient cause is a question of fact and the court has to exercise its discretion in the varied and special circumstances in the case at hand.
Judgement
The Supreme Court allowed the appeal. The judgement of the High Court was set aside and the order of the Trial Court was restored. SC held that in order to set aside an ex parte decree, the defendant needs to prove sufficient causes provided under order IX Rule 13 which wasn’t done by the wife in the present case. Also, it stated that the test that has to be applied is whether the defendant honestly and sincerely intended to remain present when the suit was called on for hearing and did his best to do so.
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